JFMF and Child Support Registrar (Social services second review)

JFMF and Child Support Registrar (Social services second review) [2024] AATA 1371 (3 June 2024)
Division:GENERAL DIVISION
File Number: 2024/0647
Re:JFMF
APPLICANT

AndChild Support Registrar
RESPONDENT

AndZDBV
OTHER PARTY

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:3 June 2024
Place:Brisbane

Pursuant to section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) the Tribunal grants the Applicant’s request to extend the time for the making of an application for review to 8 February 2024.
.......................[SGD]..............................
Senior Member Theodore Tavoularis
Note: names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
PRACTICE AND PROCEDURE – Social Services – application for extension of time - whether the length of delay was justified - whether there was a reasonable explanation for the delay - whether the substantive application for review has merits - whether granting of extension of time would prejudice the Respondent or the general public - whether there are alternative avenues of relief for the Applicant should the extension of time not be granted –extension of time request granted
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Electronic Transactions Act 1999 (Cth)
Case
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
REASONS FOR DECISION
Senior Member Theodore Tavoularis
3 June 2024
INTRODUCTION

This matter was listed for an interlocutory hearing by telephone on 22 May 2024. That hearing day had to be vacated due to late notification of this interlocutory hearing to the Other Party[1]. By the date of the abovementioned interlocutory hearing, there had been no response from the Other Party to the Applicant’s request for an extension of time.
[1] ZDBV.
Both the Applicant[2] and the Respondent[3] consented to a determination of the subject interlocutory issue (i.e. the Applicant’s request for an extension of time) by this Tribunal on the papers. I will thus determine this matter on the papers pursuant to the power vested in this Tribunal pursuant to section 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
[2] JFMF.
[3] The Child Support Registrar.
The Other Party has responded to the Applicant’s request for an extension of time. She did so pursuant to a duly filed ‘Notice of Opposing Application for Extension of Time’ dated

22 May 2024 and received by the Tribunal’s Registry on the following day, 23 May 2024. In the ‘Notice of Opposing Application for Extension of Time’ the Other Party does not appear to take issue with the Tribunal determining this matter on the papers.
The material now before the Tribunal has been itemised in the attached Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.
BACKGROUND
On 21 April 2023, the Applicant applied to the SSCSD[4] of this Tribunal to appeal a decision made by the Respondent.
[4] Social Security and Child Support Division.
The decision sought to be reviewed was made by the SSCSD on 20 November 2023.[5] In that decision, the SSCSD affirmed the decision under review (‘Tier 1 decision’). The Applicant was notified of this Tier 1 decision by email on 4 December 2023.[6] This notification letter advised the Applicant that he had 28 days to apply to

the General & Other Division of the Tribunal should he wish to challenge the Tier 1 decision.
[5] See Exhibit 2.
[6] See Exhibit 3.
The 28^th day from 4 December 2023 fell on Monday, 1 January 2024 which was the New Year’s Day public holiday. Section 36(2) of the Acts Interpretation Act 1901 (Cth) provides that because the 28^th day fell on a public holiday, the Applicant had until Tuesday, 2 January 2024 to apply to the General & Other Division of this Tribunal to appeal the Tier 1 decision.
The Applicant eventually lodged an extension of time (‘EoT application’) with the General & Other Division of this Tribunal on 8 February 2024.[7] In that EoT application the Applicant said he (1) wanted to appeal the Tier 1 decision; and (2) he received the Tier 1 decision on 4 December 2023.
[7] See Exhibit 1.
On 26 February 2024, the Respondent’s representative advised the Tribunal that it adopted a ‘neutral position’ towards the EoT application lodged by the Applicant.[8]
[8] See Exhibit 4.
THE ISSUE BEFORE THE TRIBUNAL
The fundamental issue before the Tribunal is whether or not the extension of time sought by the Applicant in his EoT application dated 6 February 2024 should be granted.
After consideration of the material before me, I have decided to grant the request. My reasons for doing so now follow.
DATE OF APPLICANT’S RECEIPT OF REVIEWABLE DECISION (TIER 1 DECISION)
Section 14A(1)(a) of the Electronic Transactions Act 1999 (Cth) relevantly provides that the time of receipt of an electronic communication such as an email for the purposes of a law of the Commonwealth[9] is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. This general rule applies unless otherwise agreed between the originator and addressee.
[9] In this case, the Child Support (Assessment) Act 1989 (Cth) and Child Support (Registration and Collection) Act 1988 (Cth).
As a preliminary issue, I will I find the Applicant was correctly served with the Tier 1 decision on 4 December 2023. I will also find that the Tier 1 decision was communicated to the Applicant by email. Neither of these issues are controversial.
When the Applicant originally applied to the SSCSD for review of the Respondent’s decision, the Applicant nominated the email address ‘h*********[email protected]’[10] as the receiving point for the provision of documents to him (‘Nominated Email Account’). There is no suggestion that the Tier 1 decision was not delivered to the Applicant’s Nominated Email Account. Indeed, the Applicant himself confirms he received the Tier 1 decision on

4 December 2023 which is the same day that appears on the notification letter from SSCSD attaching the Tier 1 decision.[11]
[10] This email address is partially redacted to protect the Applicant’s privacy.
[11] See Exhibit 3.
I am therefore satisfied the Tier 1 decision was served on the Applicant on 4 December 2023. It follows that a valid application ought to have been filed with the General & Other Division of this Tribunal by 2 January 2024.
THE POSITION OF THE OTHER PARTY
In her ‘Notice of Opposing Application for Extension of Time’ the Other Party states her grounds of that opposition are stated in these terms:
‘I strongly feel that granting more time is just wasting everyone's time and energy. We have already been through this, my children reside with myself, in England. 100% time.
Both [Child H] and [Child V].
We have already been through a tribunal and all evidence was provided, [the Applicant] will not be able to bring anymore evidence, he is just delaying the situation and trying to be as awkward as possible.
Please can someone just see what is going on here.
If this is re-opened up, the outcome will be the same, both [Child H] and [Child V] reside in England with me.’[12]
[12] See Exhibit 5.
On 28 May 2024 the Applicant provided a short response to these grounds stipulated by the Other Party. That response is put in these terms:
‘Their [sic] is no denying the boys reside with [the Other Party] in the UK and that is not what the objection is about.
The matter of the fact [sic] is I have [Child H] and [Child V] at exactly the same time for exactly the same amount of time annually when I visit 4 times a year for 2 weeks at a time.(15% ,56 days).
[The Other Party] has even confirmed this verbally and in print many times.’[13]
[13] See Exhibit 6.
This exchange between the Applicant and the Other Party does not inform the issue of whether an extension of time should or should not be granted. No reasonably-minded Tribunal could expect either the Applicant or the Other Party to know the relevant principles governing any grant of an extension of time. Their exchange points to a reality that their submissions are more appropriately matters to be considered at any fresh hearing rather than assisting with resolution of a decision about extending time. The Other Party expresses a type of exasperation in her grounds of objection. But this position does not inform the Tribunal’s determination of the extension of time point.
CONSIDERATION OF PRINCIPLES RELATING TO EXTENSION OF TIME APPLICATIONS
If an application to this Tribunal is filed out of time, the prospective applicant must apply for an extension of time. The Applicant has done this.[14]
[14] See Exhibit 1.
The AAT Act[15] facilitates an extension of time if the Tribunal is satisfied ‘that it is reasonable in all the circumstances to do so.’[16] The principles which inform the Tribunal as to whether it is reasonable in all the circumstances to grant an extension of time are set out in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344. This case make it clear that I must consider:
·the extent of the delay;
·the explanation for the delay;
·any prejudice to the respondent or the general public arising from an extension of time;
·the merits of the substantive application for review; and
·any alternative avenues of relief for the applicant should the extension of time not be granted.
[15] Administrative Appeals Tribunal Act 1975 (Cth).
[16] AAT Act, s 29(7).
I will consider each in turn.
Extent of the delay
The extent of the delay is not significant. The application should have been filed on
2 January 2024. It was filed on 8 February 2024. This is a period of delay of just over a month. There is no complaint from the Respondent or the Other Party about the extent of the delay. The extent of the delay is not a factor militating against the requested extension of time.
Explanation for the delay
In section 4 of the EoT application, the Applicant is asked ‘Outline your reasons for applying for an extension of time to make your application for review of the decision’.[17] The Applicant responded to that requested explanation with the words ‘Was only just made aware can appeal decision [sic]’[18]. While there is no attribution to any reason about why the Applicant had been ‘only just made aware’ of his appeal rights, this albeit limited explanation is not the subject of any criticism or complaint by the Respondent or the Other Party.
[17] See Exhibit 1.
[18] See Exhibit 1.
The further limitation to the credibility of the purported explanation for the delay is that it flies in the face of the undisputed reality of the Applicant’s receipt of the Tribunal’s notification letter setting out the 28 day period governing his appeal rights. While the purported explanation is made on a unilateral basis and does not appear to have support from extraneous evidence, it is, nevertheless, an ‘explanation’ of sorts and one which is not the subject of any cavilling by either the Respondent or the Other Party. The explanation for the delay is not a factor militating against the requested extension of time.
Prejudice to the Respondent, the Other Party or the general public
The Respondent does not say it or the public more generally, would be prejudiced by the grant of an extension of time. The Other Party expresses a level of exasperation but does not point to any actual prejudice she may suffer if the time is extended. The occasioning of prejudice to any of the named parties or the public more generally is not a factor militating against the requested extension of time.
The merits of the substantive application for review
In his EoT application the Applicant makes no specific reference to the merits of his proposed substantive application in seeking review of the Tier 1 decision. In his EoT application he is asked to ‘Write a brief description of the [Tier 1 decision]’ to which he responded with ‘Only 1 of my son’s is recognised as being in my care 56 days of the year despite the mother and my evidence supporting it.’[19]
[19] See Exhibit 1.
The ‘evidence’ to which the Applicant refers is summarised in the Respondent’s abovementioned submission comprising Exhibit 4. The Respondent notes that:
‘As part of the AAT1 proceedings[20] both parties provided extensive evidence including statutory declarations, photographs of the children, copies of text messages, written statements, and enrolment records.
Based on the evidence the Tribunal was not satisfied that [the Applicant] had [Child V] in his care for 15% of the time.’
[20] Giving rise to the Tier 1 decision.
It can therefore be safely found that in the absence of a fulsome analysis of the Applicant’s prospects in any substantive application for the review of the Tier 1 decision, it seems clear (1) he does have a case to ventilate and (2) that such ventilation may well involve the adducing of evidence in the form of statutory declarations, photographs of the children, copies of text messages and additional material in the form of other written statements and enrolment records.
On the basis that the Applicant has at the very least, a case to ventilate and evidence to adduce in support of such ventilation, it would, to my mind, be both unreasonable and unfair to allow this ‘merits’ element to militate against the extension of time sought by the Applicant.
Any alternative avenues for relief if the extension of time is refused
The Tier 1 decision has been made. The only way the Applicant can challenge and set aside that decision is by ventilation of a substantial application for review of that decision for which the extension of time is now sought. He does not have the option of simply discontinuing this EoT application and filing another such application at a later time. If he were to do so, he would find himself in precisely same position he is presently in. That is, he would again be seeking an extension of time but only to a later date than is presently sought.
The Applicant does not have any alternative avenues for relief were I to refuse his request for an extension of time. In the absence of granting that request, the Applicant will forever be subject to the practical effects resulting from the Tier 1 decision. I am therefore of the view (and I find) that the absence of any alternate avenues for relief for the Applicant in the event that time is not extended is a factor that now militates in favour of granting the requested temporal extension.
FINDINGS
I have found that none of (1) the extent of the delay; (2) the explanation for the delay;
(3) the occasioning of any prejudice resulting from granting the requested temporal extension; and (4) the merits of any substantive application for the review of the Tier 1 decision are factors militating against this Tribunal’s exercise of its discretion to extend time.
I have also found that the absence of any alternate avenues of relief for the Applicant in the event the requested extension of time is refused is a factor now militating in favour of the requested temporal extension. Based on my findings about the Hunter Valley factors I will cause this Tribunal to exercise its discretion pursuant to section 29(7) of the AAT Act to extend the time for the making of an application for review of the Tier 1 decision.
DECISION
The Tribunal grants the extension of time sought by the Applicant.

35. I certify that the preceding 34 (thirty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............[SGD]..........
Associate
Dated: 3 June 2024
ANNEXURE A
Exhibit 1- Application dated 6 February 2024 (‘EoT application’);
Exhibit 2- Tier 1 decision dated 20 November 2023;
Exhibit 3- Notification letter from this Tribunal’s SSCSD dated 4 December 2023; and
Exhibit 4 – Respondent’s position on the requested EoT application (dated 26 February 2024);
Exhibit 5 – Other party’s position on the requested EoT application (dated 22 May 2024).
Exhibit 6 – Applicant’s response to the Other Party’s stated grounds for opposing the EoT application (dated 28 May 2024).

[2024] AATA 1371

3 June 2024

Key Legal Topics

Areas of Law

Administrative Law

Family Law

Legal Concepts

Procedural Fairness

Appeal

Jurisdiction